The world of sound is a world of vibrations and numbers. By its very nature the notion of "sound" is abstract and subjective. The copyright law developed certain definable, if not definite, criteria to determine if defendant copied plaintiff's work. Therefore, to defy the subjectivity inherent to the aural perception, one must make a side-by-side comparison of plaintiff’s and defendant’s works through dissection.
Attorney Gherman has had over 20 years of musical background and is familiar with the building blocks that comprise a song, a piece, or a musical track. He has a Doctorate of Musical Arts degree which gives him a unique perspective on music.
Music copyright infringement is routinely determined by subjecting the two works to a side-by-side comparison under a "substantial similarity" test. Mass consumers demand music capable of being emulated by a vast number of people, a music that is simple in harmony and in rhythm.
The simpler the harmony, the better, since more fans could later recall the song and perhaps even replicate it in some way. Most, if not all, commercial songs have a simple harmony at the songs’ core.
If a plaintiff proves ownership of copyright, such as by showing a valid certificate of registration with the copyright office, and proves that the defendant copied protected compositional elements of the registered work, then the plaintiff has asserted a valid infringement claim.
To demonstrate copying of the protected elements, the plaintiff must prove actual and actionable copying.
Actual copying is proven by demonstrating that the defendant had access to the plaintiff’s work and by a showing of probative similarity between the competing works. Actionable copying is proven by satisfaction of the substantial similarity test.
The substantial similarity test itself varies among circuits. In some circuits, the test first focuses on extrinsic or objective similarity, which is a question of law, and then upon intrinsic or subjective similarity, which is a question of fact for the jury. Guided by the indicia of sufficient disagreement between two works, the extrinsic similarity test dissects both works measure-by measure, with the help of expert music theoreticians and composers, to ascertain whether the defendant has appropriated the specific protectable elements of the plaintiff’s work. Dissection spares no compositional component: melody, motifs, melodic contours, tonality, pitch emphasis, bass line, tempo, generic style, rhythm, ornamentation, harmony and lyrics. Past the extrinsic gate, the plaintiff faces the intrinsic similarity test, which simply asks the jury whether the total feel of the two works, in their ordinary and reasonable perception, are substantially similar.
In other circuits, the experts’ testimony is used to prove probative similarity, but is usually “not permitted to aid in the substantial similarity inquiry.” The greater the degree of probative similarity, the greater the likelihood of a finding of actual copying. The First Circuit, however, analyzes substantial similarity under the “ordinary observer” or “ordinary listener” test. Under the ordinary listener test an allegedly infringed work will be found to be substantially similar to a copyrighted work if an “ordinary person with reasonable attentiveness” concludes, after listening to both, that the former was unlawfully appropriated.
Practitioners must be aware that some courts vacillate between the use of the probative similarity and substantial similarity tests. The two are not the same, since probative similarity is a threshold matter in showing actual copying, and substantial similarity is a comprehensive test for determining actionable copying. Notwithstanding the nomenclature variances in the analyses’ frameworks, litigants in one circuit do not appear to receive more substantive rights than in another.
Under the current system of determining infringement, the jury assesses the intrinsic similarity between the plaintiff’s and defendant’s songs. Many factors impair a jury’s ability to determine the intrinsic similarity between two songs. Just as a visual work of art occupies space, music occupies time. Once a piece has been presented to a listener, the listener could potentially pass a judgment on it. Yet the inherent abstractness of aural perception makes articulation of one’s listening experience difficult.